"(a) A declaration that the plaintiff is the absolute and perfect owner of property No.J.M. 3/303 on the basis of sale-deed dated 9-3-1978 executed between him and Mst. Saeeda Amin.
(b) A declaration that the property in suit was not and could not have been treated as an evacuee property and therefore, the same could not have been transferred to defendants Nos. l(i) to (viii).
(c) A declaration that the documents issued by defendants Nos.2, 3 and 5 in favour of defendant No.1(i) to (viii) are devoid of any lawful authority and confer no interest or title in favour of defendants Nos. l(i) to (viii) and the said documents are liable to be cancelled.
(d) An order of cancellation of P.T.O. Dated 27-10-1963 and P.T.D. Dated 10-2-1992.
(e) An order of injunction restraining defendants Nos.1(i) to (viii) from selling, transferring, disposing of, alienating or encumbering the property in question in any manner whatsoever.
(f) A declaration to the defendants Nos.1(i) to (viii) for delivery of possession.
2. Precisely the case of the plaintiff is that he purchased the property in suit from Mst. Saeeda Begum who is a legal heir of Muhammad Amin who on his part had purchased the property from Mst. Salina Begum for consideration. On her part Mst. Salina Begum purchased this property by way of a sale-deed dated 18-3-1948 from Khushhaldas Parsram and others which transaction was confirmed by Deputy Custodian (Judicial) Evacuee Property by order dated 17-4-1951.
3. Case of the contesting defendants on the other hand is that the property in suit was transferred by the Settlement Authorities in favour of Mst. Rashida Begum by virtue of P.T.O. Dated 27-10-1963.
On the basis of the aforesaid P.T.O. Mst. Rashida Begum filed Suit No.2439/1982 for declaration, injunction and perpetual injunction against Mst. Saeeda Amin, Muhammad Naqi (plaintiff in this suit), City Deputy Collector, Karachi and Mukhtiar kar, Karachi East before the Court of V-Senior Civil Judge, Karachi which was decreed by Mrs. Qaiser Iqbal vide judgment dated 30-4-1985 and decree dated 29-5-1985. In this suit Mst. Rashida Begum sought declaration of her title and challenged the mutation in favour of Muhammad Naqi as being obtained by fraud and misrepresentation and without any notice to her. In the prayer clause she sought a declaration with regard to the sale-deeds dated 18-3-1948 duly registered on 27-9-1949 as well as sale-deed dated 9-3-1978 in favour of the present plaintiff as barred by law which was granted by the trial Court as prayed.
4. Neither Mst. Saeeda Begum nor the present plaintiff challenged the decree in appeal and instead one Abdul Hameed filed Civil Appeal No.286/1985 before the District Judge, Karachi East, who set aside the judgment and decree passed by the Senior Civil Judge. Appellate judgment was assailed by Mst. Rashida Begum in Civil Revision Application No 22 of 1987 which was allowed vide judgment dated 17-2-1992 whereby the judgment and decree passed by the Appellate Court were set aside. In this judgment it was observed that since the defendants had not called into question the judgment and decree it had attained finality and appellant Abdul Hameed had no locus standi to challenge the same by way of an appeal. It may thus he observed that the decree in tile earlier suit filed by Mst. Rashida Begum against the defendants including the present plaintiff attained finality.
5. By the instant application contesting defendants seek rejection of the plaint in terms of Order VII, Rule 11, C.P.C. On three grounds: firstly, that the suit is barred by law, secondly, that the relief with regard to the declaration in respect of the orders passed by Settlement Authorities is barred by limitation and thirdly, that the plaint does not disclose any cause of action.
6. Adverting to the issue raised with regard to the bar by law, I am of the considered view that the plaintiff cannot maintain a suit for declaration of his title in view of the decree passed in the earlier suit between the parties relating to same property which has attained finality at law. The plaintiff having not appealed from the judgment and decree passed against him by a competent Court of law is legally estopped from raising the same issue by way of a fresh suit which on the face of it is neither maintainable nor lawfully constituted. It is very clearly hit by the doctrine of "res judicata" and the plaintiff cannot be permitted to maintain this suit for the relief which he could have lawfully agitated in the suit filed by Mst. Rashida Begum against him. Since he is not entitled to maintain a suit for declaration of title, the plaint is barred by law relating to res judicata.
7. Secondly he cannot maintain a suit for declaration in respect of documents of transfer and seek cancellation thereof by impugning the validity of the transfer orders passed in favour of Mst.
Rashida Begum in 1963 and her legal heirs in 1992 at this belated stage. On this ground as well his suit is hit by limitation as well as res judicata. Needless to observe prayer for declaration and cancellation with regard to P.T.O. Is expressly barred by law of limitation whereas P.T.D. Is issued by way of confirmation of transfer made in 1963 and not an independent act by itself.
8, While there is no merit in the contention of defendants' counsel with regard to bar of jurisdiction after the repeal of Settlement and Evacuee Laws in 1974 as held in Sungreen & Company v. Noman Bai PLD 1978 Kar. 100, I am of the view that in view of the facts and circumstances, plaintiff has no cause of action to bring this suit. There is no gain observing that by seeking declaration with regard to delivery of possession, plaintiff is unlawfully and mala fide circumventing the right and interest of the contesting defendants upheld and approved at the level of Supreme Court of Pakistan in proceedings against him and other tenants under Rent Laws. Quite certainly he has not come to Court, with clean hands.
9. For these reasons, I direct the rejection of plaint under Order VII, Rule 11, C. P. C. With the rejection of plaint C. M. A. No. 326 of 1996 seeking stay of eviction proceedings under Rent Laws stands dismissed as being misconceived.